The state has no published court decisions on the non-confidential journalist's privilege but would likely follow federal decisions applying a First Amendment qualified privilege.

Like "the curious incident of the dog in the night-time" in Sir Arthur Conan Doyle's 1892 story Silver Blaze, observers may well wonder why the state's judicial dogs have not barked since 1984. Perhaps, as Sherlock Holmes deduced, there was nothing to bark at -- and that, in effect, the reporter's privilege is so well-entrenched that there have been few efforts to breach it.

II. Authority for and source of the right

A. Shield law statute

Washington’s reporter shield statute was signed into law on April 27, 2007, and is codified at RCW 5.68.010. The statute provides the "news media" (as defined therein) with absolute protection for confidential sources and qualified protection for other journalistic materials and information. The statute clarifies and expands the scope of protection for reporters from compelled testimony and disclosure.

Though frequently invoked by the press in response to subpoenas, the statute has been cited in just one published appellate decision, in a case that did not involve a media litigant. In Republic of Kazakhstan v. Does 1-100, 192 Wash. App. 773, 368 P.3d 524 (2016), the Court of Appeals interpreted the shield law broadly and quashed a subpoena seeking to force an internet domain registry to disclose information that would have enabled the government of Kazakhstan to identify hackers who allegedly stole confidential information and supplied it to an opposition newspaper. The court recognized the shield statute prevents not only “disclosure of the identity of a source of any news or information,” but also “disclosure of any information that would tend to identify a source.” Id., 192 Wash. App. at 786.

B. State constitutional provision

There is no state constitutional provision expressly providing shield law protections in Washington State.

It may be significant, however, that Article 1, Section 5, of the Washington Constitution, which recognizes that the state's residents have a right to speak, write, and publish on all subjects, was copied directly from California Constitution, which was itself copied from New York's constitutional provision. See, e.g., Robert Utter, The Right to Speak, Write, and Publish Freely, 8 U. Puget Sound L. Rev. 157, 174-75 (1985); Los Angeles Alliance v. City of Los Angeles, 22 Cal.4th 352, 365-66, 93 Cal. Rptr.2d 1, 993 P.2d 334 (2000). Given this ancestry, one can argue that it creates a conditional privilege for journalists' non-confidential work product consistent with the protections that have been adopted in New York using the identical constitutional language. See, e.g., O'Neill v. Oakgrove Constr., Inc., 71. N.Y.2d 521, 523 N.E.2d 277, 528 N.Y.S. 1 (1988).

Indeed, one Washington court has suggested that the state constitution's explicit protection of the right to "write" (which necessarily encompasses the gathering of news) in addition to the right to "publish" suggests an intention to create a broader right than is available under the First Amendment. See State v. Rinaldo, 36 Wn. App. 86, 91-102, 673 P.2d 614 (1983), aff'd on other grounds, 102 Wn.2d 749, 689 P.2d 392 (1984); Note, Rethinking Civil Liberties Under the Washington Constitution, 66 Wash. L. Rev. 1099, 1103 (1991).

C. Federal constitutional provision

The state's trial and appellate courts have generally recognized and abided by federal case law adopting a First Amendment privilege for journalists. There are no published Washington decisions, however, confirming this basic principle.

For example, when the Washington Court of Appeals issued an unpublished decision in February 2001, In the matter of the request of: Plaintiffs Alfredo Azula et al., 29 Med. L. Rptr. 1414 (Wash. App. 2001), the court recognized, without discussion, that a journalist had a First Amendment privilege to resist disclosure of interview notes pursuant to a subpoena duces tecum. The court held that in camera review was appropriate and that, because the notes "have no relevance" to the underlying case, a trial court committed error in ordering disclosure of the journalist's notes.

The principle that a First Amendment interest can trump the obligations imposed by the civil discovery process, however, is well-established in Washington. In one state court case, which did not involve a reporter's privilege but rather a political party's refusal to name members and donors, the Washington Supreme Court recognized that a First Amendment privilege may be interposed to resist civil discovery requests. This case, Snedigar v. Hoddersen, 114 Wn.2d 153, 786 P.2d 781 (1990), suggests that a journalist's privilege can be rooted in a broader First Amendment context in appropriate circumstances.

Finally, the state's courts, while resting their holdings on a common law privilege for reporters, have generally recognized that the common law privilege is bounded "'by an awareness of First Amendment values.'" Clampitt, 98 Wn.2d at 644 n. 3; see alsoSenear, 97 Wn.2d at 155, 641 P.2d 1180. ("While these cases are all concerned with whether there is First Amendment qualified privilege, their statements as to the balancing of interests and the need for a qualified privilege are germane to questions of common law privilege for reporters.").

D. Other sources

The Washington Supreme Court has recognized a qualified common law privilege against compelled disclosure of confidential source information in civil and criminal cases. See Senear, 97 Wn.2d at 152-57 (civil); Rinaldo, 102 Wn.2d at 754-55 (criminal).

III. Scope of protection

A. Generally

In the three published cases that have specifically acknowledged a common law confidential source privilege, Washington courts have adopted a qualified privilege. See Senear, 97 Wn.2d at 155-56 (civil); Rinaldo, 102 Wn.2d at 755 (criminal); Clampitt, 98 Wn.2d at 642-43 (civil).

Also, please see the discussion of the shield statute, RCW 5.68.010. See Section II.A (Shield law statute) above.

B. Absolute or qualified privilege

In Washington State, under the common law, a party seeking to compel discovery of confidential information from a journalist in a civil action must show that (1) the claim is meritorious; (2) the information sought is necessary or critical to the cause of action or defense pleaded; and (3) he or she made a reasonable effort to obtain the information by other means. Senear, 97 Wn.2d at 155; Clampitt, 98 Wn.2d at 642. A similar test pertained to criminal cases. Rinaldo, 102 Wn.2d at 755.

Trial courts in Washington, at least one unpublished decision by the Court of Appeals, and a federal district court have recognized a similar, conditional privilege for a journalist's non-confidential materials, consistent with the Ninth Circuit's tests as articulated in Shoen v. Shoen, 5 F.3d 1289 (9th Cir. 1993), and Shoen v. Shoen, 48 F.3d 412 (9th Cir. 1995). Citing Shoen, a court in the Western District of Washington denied a motion to compel production of communications between a newspaper and the plaintiffs, despite the defendants' assertion that the reporter had "overstepped the bounds of journalism" when he provided information to the plaintiffs, finding that the privilege still applied and the defendants failed to fully pursue information from alternative sources. Wright v. Fred Hutchinson Cancer Research Ctr., 206 F.R.D. 679, 680-82 (W.D. Wash. 2002).

Section 1(a) of the shield statute provides for absolute protection for confidential source information, and Section 1(b) provides for a qualified privilege for other "news or information obtained or prepared by the news media." SeeRCW 5.68.010(1).

C. Type of case

1. Civil

Washington's courts generally apply the same confidential source test in criminal and civil actions. Rinaldo, 102 Wn.2d at 755. There are no published Washington decisions regarding reporter's privilege for non-confidential information.

The shield statute, by its terms, applies to civil matters. SeeRCW 5.68.010(1).

2. Criminal

In the only published Washington case that applies a common law journalist's privilege in a criminal context, the court adopted a qualified privilege identical to the test applied in civil litigation. In doing so, however, the court noted that a judicial balancing test may present "more difficulties in criminal prosecutions than in civil actions," because "the defendant's right to a fair trial presents a more compelling interest in favor of disclosure than a civil litigant." Rinaldo, 102 Wn.2d at 754.

Given the language in Rinaldo, it is likely that a Washington court would place greater weight on the interests of a criminal defendant than those of a prosecutor.

Also, Section 1 of the shield statute, by its terms, applies to criminal matters. SeeRCW 5.68.010(1).

G. Reporter's personal observations

Washington's case law has not yet squarely addressed this issue.

Section 1(b) of the shield statute provides for a qualified privilege for "[a]ny news or information obtained or prepared by the news media" when it is "gathering, receiving, or processing news or information." SeeRCW 5.68.010(1(b).

H. Media as a party

Washington courts recognize application of a confidential source privilege even where the media is a party. In Senear, 97 Wn.2d at 150-51, the newspaper was a defendant in a libel action and the Washington Supreme Court reversed a trial court order directing the newspaper to answer an interrogatory seeking the identity of a confidential source.

A year later, the same court stated that "reporters who are themselves plaintiffs have little or no privilege" but reporters "who are defendants and reporters who are not involved in the action at all . . . are significantly protected by Senear" and "reporters who are not parties (and whose reporters are not parties) receive still greater protection." Clampitt, 98 Wn.2d at 644. One year later, in a criminal case, the Washington Supreme Court stated, in passing: "Although journalists who are parties have little or no privilege, a news reporter, as here, who is not a party to the underlying action, should receive greater protections." Rinaldo, 102 Wn.2d at 754.

There are no state court decisions regarding non-confidential materials. It is possible that, in those circumstances, the Washington courts would evolve a different test for civil discovery from media parties.

Section 1 of the shield statute, by its terms, applies to any proceeding in which there is a "body with the power to compel the news media to testify, produce, or otherwise disclose" the information covered by the statute. SeeRCW 5.68.010(1).

I. Defamation actions

Senear, discussed in Section H above, was a civil defamation action.

Section 1 of the shield statute, by its terms, applies to any proceeding in which there is a "body with the power to compel the news media to testify, produce, or otherwise disclose" the information covered by the statute. SeeRCW 5.68.010(1).

IV. Who is covered

A. Statutory and case law definitions

Section 5 of the shield statute defines the "news media" as: "(a) Any newspaper, magazine or other periodical, book publisher, news agency, wire service, radio or television station or network, cable or satellite station or network, or audio or audiovisual production company, or any entity that is in the regular business of news gathering and disseminating news or information to the public by any means, including, but not limited to, print, broadcast, photographic, mechanical, internet, or electronic distribution; (b) Any person who is or has been an employee, agent, or independent contractor of any entity listed in (a) this subsection, who is or has been engaged in bona fide news gathering for such entity, and who obtained or prepared the news or information that is sought while serving in that capacity; or (c) Any parent, subsidiary, or affiliate of the entities listed in (a) or (b) of this subsection to the extent that the subpoena or other compulsory process seeks news or information described in subsection." SeeRCW 5.68.010(5).

1. Traditional news gatherers

a. Reporter

In adopting a confidential source privilege, the Washington Supreme Court held that the privilege "applies to both working reporters and the organizations by whom they are employed." Senear, 97 Wn.2d at 157. Cases recognizing a First Amendment privilege to resist civil discovery, such as Snedigar v. Hoddersen, 114 Wn.2d 153, 786 P.2d 781 (1990), would suggest that recognition of any First Amendment privilege would turn on the interests involved rather than the particular definitions of reporter, editor, or photographer.

Also see Section 5 of the shield statute, which defines the covered "news media." SeeRCW 5.68.010(5).

b. Editor

Washington's case law has not yet squarely addressed this issue. The state courts would likely apply a First Amendment privilege that is based on broader considerations than newsgathering interests. SeeSnedigar v. Hoddersen, 114 Wn.2d 153, 786 P.2d 781 (1990).

Also see Section 5 of the shield statute, which defines the covered "news media." SeeRCW 5.68.010(5).

c. News

Washington's case law has not yet squarely addressed this issue. The state courts would likely apply a First Amendment privilege that is based on broader considerations than newsgathering interests. SeeSnedigar v. Hoddersen, 114 Wn.2d 153, 786 P.2d 781 (1990).

Also see Section 5 of the shield statute, which defines the covered "news media." SeeRCW 5.68.010(5).

d. Photo journalist

Washington's case law has not yet squarely addressed this issue. The state courts would likely apply a First Amendment privilege that is based on broader considerations than newsgathering interests. SeeSnedigar v. Hoddersen, 114 Wn.2d 153, 786 P.2d 781 (1990).

Also see Section 5 of the shield statute, which defines the covered "news media." SeeRCW 5.68.010(5); see also Section IV.A (Statutory and case law definitions) above.

e. News organization/medium

The Washington Supreme Court has stated that the confidential source privilege extends to "organizations" that employ "working reporters." Senear, 97 Wn.2d at 157. The cases have not further refined any distinctions.

Also see Section 5 of the shield statute, which defines the covered "news media." SeeRCW 5.68.010(5); see also Section IV.A (Statutory and case law definitions) above.

B. Whose privilege is it?

To the extent that Washington has considered this issue at all, it recognizes that a qualified reporter's privilege to refuse to disclose confidential sources extends to both working reporters and the organizations by whom they are employed. Senear, 97 Wn.2d at 157.

V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

There are no specific requirements for when a subpoena must be served on a member of the news media. Under CR 45(a)(4), an attorney of record in a case is authorized to issue subpoenas demanding production of documents or deposition testimony from third parties. The usual notice period for depositions in civil actions is "not less than 5 days (exclusive of the day of service, Saturdays, Sundays and court holidays) to every other party to the action and to the deponent, if not a party or managing agent of a party. . . . Failure to give 5 days' notice to a deponent who is not a party or a managing agent of a party may be grounds for the imposition of sanctions in favor of the deponent, but shall not constitute grounds for quashing the subpoena." CR 30(b)(1). Similar procedures are applicable in criminal cases. CrR 4.6(c), 4.8.

2. Deposit of security

There are no specific requirements regarding deposit of security in support of the issuance of a subpoena against a reporter or news organization. Generally, a witness fee is required in connection with the issuance of any civil subpoena. See, e.g., RCW 5.56.010 ("No such person shall be compelled to attend as a witness in any civil action or proceeding unless the fees be paid or tendered him which are allowed by law for one day's attendance as a witness and for traveling to and returning from the place where he is required to attend, together with any allowance for meals and lodging theretofore fixed as specified herein."). A different rule prevails for criminal trial subpoenas. RCW 10.52.040.

3. Filing of affidavit

Washington court rules do not require that a subpoenaing party make any sworn statement in order to procure the reporter's testimony or materials. Of course, proof of service of a subpoena must be made by affidavit under CR 45(c).

4. Judicial approval

Generally, in Washington State, an attorney of record can issue a subpoena without prior judicial approval, with the exception that leave of court must be obtained "if the plaintiff seeks to take a deposition prior to the expiration of 30 days after service of the summons and complaint upon any defendant . . . ." CR 30(a).

5. Service of police or other administrative subpoenas

B. How to Quash

Washington practice generally determines issues of privilege by a motion to quash (or, as they may also be styled, by a motion for protective order). A motion to quash may also be appropriate with regard to a subpoena duces tecum, but it is not necessary. This is because CR 45(c)(2)(b) allows the recipient of a subpoena may, “within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued." See also Section II.A (Shield law statute) above.

1. Contact other party first

Washington courts will not entertain a motion to compel or a motion for protective order in a civil action unless "counsel have conferred with respect to the motion or objection." CR 26(i). The burden of setting the conference of counsel is on the moving or objecting party.

2. Filing an objection or a notice of intent

3. File a motion to quash

a. Which court?

In civil actions, a motion for protective order may be filed in the court in which the action is pending or, in the case of depositions, in the county where the deposition is to be taken. CR 26(c). Similar provisions would likely apply in criminal actions. CrR 4.8.

d. Language

e. Additional material

4. In camera review

a. Necessity

In at least one unpublished decision, the Washington Court of Appeals has shown itself receptive to in camera review in connection with claims of reporter's privilege. See In the matter of the request of: Plaintiffs Alfredo Azula et al., 29 Med. L. Rptr. 1414 (Wash. App. 2001).

B. Elements

1. Relevance of material to case at bar

Under the common law, the party seeking to compel compliance with the subpoena must show that "the information sought [is] necessary or critical to the cause of action or the defense pleaded." Senear, 97 Wn. 2d at 155 (confidential source case).

Section 2(b)(1) of the shield statute, which involves the conditional privilege for non-confidential journalist work product, requires the proponent of disclosure to prove that the "news or information is highly material and relevant" and "critical or necessary to the maintenance of a party's claim, defense, or proof of an issue material thereto," and finally that, in a civil action, "there is a prima facie cause of action" and, in a criminal action, "there are reasonable grounds to believe that a crime has occurred." SeeRCW 5.68.010(2)(b)(1).

2. Material unavailable from other sources

Under the common law case law concerning confidential sources: "Even when the information is critical and necessary to plaintiff's case, the plaintiff must exhaust reasonably available alternative sources before a reporter is compelled to disclose." Senear, 97 Wn.2d at 155 (confidential source case).

Section 1(a) of the shield statute provides for an absolute privilege regarding confidential sources. Section 2(b)(1) of the statute, which involves the conditional privilege for non-confidential journalist work product, requires the proponent of disclosure to prove that he or she "has exhausted all reasonable and available means to obtain it from other sources." SeeRCW 5.68.010(1), (2).

a. How exhaustive must search be?

For common law privilege claims, Washington's case law has not yet squarely addressed this issue, other than to note that "the test we adopt here is one of reasonableness, keeping in mind the competing values to be served and balanced." Senear, 97 Wn.2d at 156 (confidential source case); see also Section VI.B.2 (Material unavailable from other sources) above.

b. What proof of search does a subpoenaing party need to make?

c. Source is an eyewitness to a crime

Washington’s case law has not yet squarely addressed this issue, but Section 1(a) of the shield statute provides for an absolute privilege regarding confidential source information. SeeRCW 5.68.010(1)(a).

3. Balancing of interests

Washington's case law has not yet squarely addressed this issue.

Section 2(b) of the shield statute requires the proponent of any disclosure by the news media of non-confidential source information to prove that there "is a compelling interest in the disclosure." SeeRCW 5.68.010(2)(b).

2. Criminal contempt

3. Other remedies

VIII. Appealing

A. Timing

1. Interlocutory appeals

Washington allows for discretionary review under certain circumstances. RAP 2.3. Review is commenced by a notice filed within 30 days of the trial court decision. RAP 5.2(b). The content of the notice is described in RAP 5.3. A party seeking review must file a motion for discretionary review within 15 days after filing the notice of discretionary review. RAP 6.2(b).

B. Procedure

1. To whom is the appeal made?

Washington has three courts of appeal: Division I sits in Seattle, Division II in Tacoma, and Division III in Spokane. The appropriate appellate court is determined based upon the county in which the matter arose. RAP 4.1. In addition, the State Supreme Court may entertain direct review in certain cases. RAP 4.2.

6. Relief

IX. Other issues

A. Newsroom searches

Washington's case law has not yet squarely addressed the issue of newsroom searches, or how the federal Privacy Protection Act or a similar state law apply. The state statute provides that "if the evidence is sought to be secured from any radio or television station or from any regularly published newspaper, magazine or wire service, or from any employee of such station, wire service or publication, the evidence shall be secured only through a subpoena duces tecum unless: (a) There is probable cause to believe that the person or persons in possession of the evidence may be involved in the crime under investigation; or (b) there is probable cause to believe that the evidence sought to be seized will be destroyed or hidden if subpoena duces tecum procedures are followed." Rev. Code Wash. s. 10.79.015(3).

The procedure for obtaining any such search warrant is governed by criminal court rule CrR 2.3(f).

C. Third-party subpoenas

D. The source's rights and interests

The shield statute protects from disclosure not only the identity of sources, but also information “that would tend to identify the source where such source has a reasonable expectation of confidentiality.” RCW 5.68.010(1)(a), (3). In Republic of Kazakhstan, the Court of Appeals recognized the interest in protecting news sources from disclosure, even when the subpoena was not directed to the news media, and even where the sources were not present in the litigation. 192 Wash. App. at 786 (quashing subpoena to internet domain registration company intended to identify alleged hackers who provided information to newspaper).